Last October, the Supreme Court (“SCOTUS”) considered a challenge to Proposition 12, a California law regulating the production and sale of many veal, egg, and pork products.  The law had two main components.  First, it prohibited the act of confining farm animals (egg-laying hens, veal calves and breeding pigs) in a “cruel manner.”  This prohibition applied to actions and animals within the state of California.  Second, it prohibited the sale of products within the state that had been made from animals who had been confined in the “cruel manner” outlined in California’s law.  This effectively imposed Prop 12’s animal housing standards on any producer, no matter the location, who wished to sell products to residents of California.  Ultimately, SCOTUS decided in favor of the state of California, allowing Prop 12 to go into effect as written.  (NALC explainer here) While Prop 12 has been the most high-profile example of this type of farm animal confinement law, it is not alone.  A similar law was passed in Massachusetts, which is now being challenged.

Question 3:

In 2016, voters in Massachusetts passed a ballot initiative called Question 3 (“Q3”).  Similar to California’s enactment, it included components prohibiting both the actual confinement of the animal and the sale of non-compliant products within the state.  The language of the statute is available here, the regulations are available here, and a FAQ by the Massachusetts Department of Agricultural Resources is here.  While it’s very similar to Prop 12, there are some differences in wording and scope.  For example, one concern raised by some groups in agriculture was the potential for Q3 to interfere with the shipment of pork raised in other states that passed through Massachusetts on the way to a final sale destination in another state.  Another example lies in implementation- while California chose to use a 3rd-party certification system to audit compliance, Massachusetts allows either self- or 3rd-party certification.

With the advent of COVID, the effective date of Q3 was postponed.  The provisions regarding egg and veal products became effective on August 15, 2022.  The provisions affecting the sale of pork products, however, were postponed until after SCOTUS made its decision.  Ultimately, the pork provisions went into effect on August 24, 2023.  Note, however, that the rule does not apply to pork meat in the supply chain on or before August 23, and that it does not- at this time- apply to whole pork that goes through distribution centers in the state but is ultimately destined for other states.

Current Challenge:

At the end of July 2023 several pork producers and processors filed a lawsuit, Triumph Foods, LLC et al v. Campbell et al, 1:23-CV-11671, D.Mass., that challenged Q3.  It made claims based on the commerce clause- similar to those posed in the Prop 12 litigation- as well as claims based on several other constitutional protections, including the Privileges and Immunities Clause, the Full Faith and Credit Clause of Article IV of the United States Constitution, the Due Process Clause of the Fourteenth Amendment to the Constitution, and the Import-Export Clause.  If the law violated any of these clauses of the Constitution, it could not be enforced.  The lawsuit also claimed that Q3 was preempted by the Federal Meat Inspection Act and the Packers and Stockyards Act.  If it was found to be preempted, then it could not be enforced because Congress had already indicated- by passing the FMIA and PSA- that states should not pass laws covering that legal topic.

The commerce clause arguments in the case largely focused on Massachusetts’s framing of where a “sale” took place.  According to the regulations, a “sale occurs at the location where the buyer takes physical possession” of an item covered by Q3.  However, those regulations also specifically exclude those changes in possession that take place in federally inspected facilities.

The complaint focuses on a commerce clause argument from a processor, rather than a producer, perspective.  Plaintiffs argue that the definition leads to discrimination between in-state and out-of-state processors because:

“[i]n-state processors may sell noncompliant Pork Meat from their FMIA and FSIS inspected facility if the buyer takes possession of the product at that establishment, effectively creating a loophole for in-state farmers. In comparison, out-of-state processors cannot have the sale of any noncompliant Whole Pork Meat be excluded from the definition of a “sale” because they are not located in Massachusetts and are shipping directly into the state from out-of-state …

Given the regulatory definition of a “sale,” in-state processors can buy noncompliant Whole Pork Meat and organize sales to occur at their in-state facilities, which would create a black market for non-compliant Whole Pork Meat and which subjects out-of-state processors to an undue, unfair, and discriminatory disadvantage.”

Since the suit was filed, there has been national interest in the arguments of the case.  “Amicus briefs,” documents filed by individuals or groups that are not parties to the case but have a strong interest in its outcome, have been filed by both proponents and opponents.  In opposition to Q3, a group of 13 state Attorneys General filed an amicus arguing the law was unconstitutional.  On the other side, a group of animal welfare organizations filed an amicus in support of Q3, arguing that the lawsuit should be dismissed.

On October 2, Judge William G. Young, a federal judge in the District of Massachusetts, held a hearing in the Q3 challenge.  After arguments in favor and against allowing the case to move forward, the court partially granted defendant’s motion to dismiss.  He allowed the challenge to the Massachusetts law based on the commerce clause argument to continue, while dismissing all other potential claims the plaintiff had outlined.  This significantly limited the scope of the arguments that will ultimately be heard and considered by the court.  The discovery period- where parties exchange information about the witnesses and evidence they plan to present at trial- is ongoing.  The case is currently scheduled to be heard in front of Judge Young beginning on December 4, 2023.

Moving Forward:

Undoubtedly, groups across the country are watching developments in the case with interest.  While the SCOTUS Prop 12 ruling opened the door for similar state laws across the country, whether the specific phrasing of Q3 falls into the safe zone will be one more piece of the puzzle.  Whatever the ruling, this may not be the end of the road for this lawsuit, as either party could appeal the decision reached by Judge Young.

Further, Congress is considering the Ending Agricultural Trade Suppression Act, or “EATS Act”.  The language of the EATS Act prohibits state governments from imposing standards/conditions on preharvest production of agricultural products if production occurred in different state with different standards.  If passed, this would affect the enforceability of Q3.

Finally, it is important to note that both Prop 12 and Q3 are currently in effect.  Producers, processors, integrators, transporters, retailers and others are currently making (sometimes long term) decisions based on the impact of those laws as they currently exist.  Subsequent rulings and legislation could have significant implications for the future, but the impact of these laws is immediate.


To read previous NALC updates about farm animal confinement cases, click here, here and here.

For information on state laws governing farm animal confinement, click here.